Frequently Asked Questions About 10 CFR Part 2 Revisions

The following questions address a variety of topics that arose during rule development and also describe the interaction between the Part 2 revisions and other NRC rulemaking or regulatory activities. Where possible, this page provides links to additional related information.

The Commission directed the staff to reexamine the procedures governing NRC hearings, with the goal of improving the agency's hearing process. The new 10 CFR Part 2 rules of practice improve the efficiency and effectives of the hearing process by establishing different hearing "tracks," consolidating procedures that are common to all NRC hearings, and improving case management methods. The purpose of the rule is to reduce the duration, cost, and burden of hearings for all parties, while enhancing public participation in NRC proceedings.

Why did the Commission eliminate formal discovery and cross-examination for most proceedings?

The Commission believes that eliminating formal discovery and cross-examination will improve case management by avoiding needless delay and unproductive litigation, while easing the burdens of participation in the hearing process for all participants. With regard to discovery, the final rule requires the early disclosure of documents, information, and witnesses by all parties, and mandates that the NRC staff must prepare a hearing file in proceedings conducted under Subparts L and N, giving all participants access to relevant information at the start of the hearing process without the need for more formal discovery. In Subpart J proceedings, the NRC staff is required to maintain an electronic docket, and all potential parties are required to participate in the Licensing Support Network, which allows access to all relevant documents. The aggregate of these mandatory disclosure mechanisms provides for discovery equal to or greater than the "discovery" provisions for on-the-record adjudicatory hearings under the Administrative Procedures Act. More formal discovery methods, such as interrogatories, depositions, and requests for production and admission remain available under Subparts G and J.

With regard to cross-examination, the final rule retains cross-examination for Subpart G hearings. In less formal hearings, the questioning of witnesses will be conducted by the presiding officer, although the parties may submit suggested questions or seek permission to cross-examine witnesses themselves. The Commission believes that cross-examination performed by the parties is usually not the most effective means for ensuring that all relevant and material information with respect to a contested issue is efficiently developed for the record of the proceeding. By contrast, the questioning of witnesses by the presiding officer, complemented by the form of questions submitted by the parties, provides a means for the expedient, focused and well-managed development of an adequate record for decision. Given that the presiding officer bears the ultimate responsibility for the preparation of an initial decision on the contentions or contested matters, it follows that the presiding officer is well-suited to assess the information and the state of the record as the hearing progresses to determine where the record requires further clarification or explanation.

Now that cross-examination is eliminated for most proceedings, will interveners have any opportunity to question a license applicant's witnesses?

The Commission believes that the character of contested matters has a direct bearing on whether the procedures of more formal hearings (such as cross-examination) are appropriate. Accordingly, the new 10 CFR Part 2 rules of practice provide for cross-examination by the parties in proceedings that warrant the use of Subpart G hearing procedures. Other proceedings will utilize less formal procedures that do not include cross-examination by the parties unless ordered by the presiding officer or the Commission, where it is determined that such cross-examination is necessary to develop an adequate record for decision. See §§2.1207, 2.1204(b), 2.1405, and 2.1402(c). Although the presiding officer will question witnesses in less formal hearings, the less formal procedures allow the parties to suggest questions for the presiding officer to ask, and they permit motions to allow the parties themselves to cross-examine witnesses.

Will the new rules of practice change the procedures that are applicable to the potential license application for a high-level waste (HLW) repository at Yucca Mountain?

In general, no. The Commission's longstanding position has been that hearings on an application to construct and operate an HLW repository would be formal. While not mandated by statute, the Commission codified this viewpoint at 10 CFR Part 2, Subpart J, which provides for a mandatory formal hearing prior to authorizing the construction of a geologic repository for HLW and before approving the receipt and possession of HLW at a geologic repository (46 FR 13971; Feb. 25, 1981). It is likely that both the initial licensing for construction of an HLW repository at the Yucca Mountain site and the initial licensing for receipt and possession of HLW will both be highly contested and involve multiple parties and a large number of disputes over material facts. The Commission's consistent position that this unprecedented proceeding would be conducted as a formal hearing has engendered certain public expectations concerning the hearing process for this proceeding. Consequently the hearing selection provision in §2.310(f) provides that the more formal hearing procedures of Subparts G and J will apply to the Commission's repository licensing process. Certain procedural requirements in existing Part 2 (e.g., timing of the filing of petitions and contentions) have changed. These changes will, of course, apply to the Yucca Mountain proceeding unless the Commission directs otherwise.

Will ongoing proceedings, such as Private Fuel Storage, be affected by the new rules?

The new 10 CFR Part 2 rules of practice will apply only to proceedings that are noticed on or after the effective date of the final rule, or other proceedings if specifically ordered by the Commission. Current proceedings noticed before the effective date of the final rule will continue to be governed by the old Part 2 provisions. If a decision is currently on appeal within the Commission, or to a court of appeals, and the decision is remanded to the NRC for further action, the remanded proceeding will continue to be governed by the old Part 2 provisions. The Commission will maintain the old Part 2 provisions on the NRC's Web site for use in ongoing proceedings.

Will the new rules make it more difficult for an interested person to intervene in an NRC proceeding ?

To be admitted as a party to formal proceedings under Subpart G, the old 10 CFR Part 2 required the interested person to proffer specific, adequately supported contention. In a significant change, the Commission is extending the requirement to less formal proceedings under Subparts K, L, M, and N. New §2.309 establishes that requests for hearings or petitions to intervene in NRC adjudicatory proceedings must meet the basic standing and "one good contention" requirements of the old §2.714, and applies those requirements to all NRC adjudicatory proceedings. This is a substantial departure from the old Subpart L, which required only the articulation of "areas of concern about the licensing activity that is the subject matter of the proceeding." The Commission believes that this modification better ensures that hearings will cover relevant concerns through the early framing of contested matters and the focusing of litigation on real, concrete issues. In addition, interested parties will now be required to file their contentions as part of the petition to intervene. Consequently, more "upfront" work will be required to prepare the petition to intervene, so the new rules provide additional time (60 days) to prepare the petition.

Why will the NRC staff not participate in most licensing proceedings?

The Commission believes that the NRC staff should have flexibility to decide whether to enter the proceeding as a party in the majority of cases. The NRC staff will continue to be required to appear as a party where it is the proponent of an action, such as the denial of an application or the issuance of an order or enforcement action. Additionally, the presiding officer is empowered to direct that the staff be a party if he or she determines that the resolution of any issue would be materially aided by the NRC staff's participation as a party. The Commission believes that, in most instances where the staff is not the proponent of an action, the staff should have the discretion to elect party status because the applicant will bear the burden of demonstrating that its request should be granted. This approach will conserve staff resources for those cases where the staff's participation as a party can be of the greatest benefit to the proceeding.

Now that formal discovery (e.g., interrogatories, subpoenas, request for admissions) has been eliminated for most proceedings, how will the presiding officer police and enforce a party's mandatory duty to disclose relevant material?

The Commission and the Atomic Safety and Licensing Board have always relied on the litigators appearing before them to carry out their disclosure responsibilities in accordance with the highest standards of integrity. The informal disclosure requirements of the new rule do not change this obligation. The new approach embodied in Subparts C and G provides for the mandatory disclosure of a wide range of information and material relevant to the contested issues in the proceeding, without resort to formal processes, unless intercession by the presiding officer becomes necessary. Under the former practice, the disclosure of relevant material would often depend upon a precisely worded discovery request submitted by the opposing party. The new rule constitutes a significant improvement because it obligates parties to disclose all relevant material from the outset, without the direct involvement of the presiding officer. However, should an opposing party not meet its duty to timely and voluntarily make required disclosures of information, an aggrieved party may seek to enforce this obligation by filing a motion to compel discovery pursuant to §§2.323 or 2.705(h).

What is the "fast track" proceeding? Who can choose to use it and how?

Subpart N contains the procedures for the new "fast track" proceeding. This new process provides simplified procedures for expedited litigation. The hearing is expected to be a quick, relatively informal proceeding, where the presiding officer can make an oral decision from the bench or shortly after conclusion of the oral phase of the hearing. Subpart N procedures are available for all NRC adjudications where all of the parties agree to use Subpart N and the hearing is expected to last less than 2 days, except for proceedings on uranium enrichment facility licensing, initial authorization to construct a high-level waste repository, or issuance of a license to possess and receive high-level waste at a geologic repository. Subpart N procedures may be particularly useful for cases involving small materials licensees where the parties want to be heard on the issues in a simple, inexpensive, and informal proceeding that can be resolved quickly before an independent decision maker.

Is it true that the main reason for the new regulations is to speed up hearings?

No. There are many reasons for changing the hearing procedures. In part, the process was changed to expand the opportunity for effective participation by using less formal and less expensive procedures. A trial-type process is neither required nor recommended for technical issues such as those at addressed in most NRC proceedings. The Commission is motivated by a desire to reduce the expense and burden on all parties in hearings and to focus the hearings on the substantive issues. Thus, many changes are designed to reduce the resources necessary to participate in hearings (e.g., mandatory disclosures and requirements for a hearing file rather than formal discovery). The Commission is also taking this opportunity to develop alternatives to the expensive and lengthy formal proceedings. Overall, the changes reflect the Commission's efforts to better tailor the hearing procedures to the scope and purpose of the adjudication.

Did the new rules of practice change the requirements for formulating contentions?

No. The requirements for an admissible contention are unchanged. However, in a significant change from the previous rules of practice, the requirement to proffer specific, adequately supported contentions in order to be admitted as a party is extended to informal proceedings under Subpart L. In addition, proposed contentions must be filed as part of the petition to intervene.

Do the new rules provide for or mandate alternative dispute resolution (ADR)?

The revisions to the rules of practice provide for, but do not require, the use of ADR.

Do the new procedures provide for electronic filing of documents with the Commission and other parties in a proceeding?

Parties are ordinarily required to serve motions, pleadings, and other documents on parties and file them with the Secretary of the NRC electronically by email or facsimile. See §§2.305(c), and 2.302(a)(3)—(4). However, at this time, the new rule does not permit filing a pure electronic document without filing a signed paper copy with the Secretary, in view of possible complications involving authentication and validation that motions, pleadings, and certifications have been properly signed by a responsible individual. Accordingly, the new rule provides that if a motion or document is served or filed electronically, one signed and two paper copies must also be filed with the Secretary. See §2.304(f).

Proposed amendments to 10 CFR Part 2 Subpart J, as well as provisions of the Electronic Maintenance and Submission of Information Rule, allow for submission of documents via electronic information exchange (EIE). Will filings that are submitted via EIE with authenticated electronic signatures be acceptable under Subpart C in lieu of paper copies?

No. The Final Rule for Electronic Maintenance and Submission of Information (68 FR 58792; Oct. 10, 2003) discussed the applicability of the rule to NRC adjudications. The Statement of Considerations made clear that the amendments and guidance documents related to electronic submission did not address the submission of documents in hearings under 10 CFR Part 2. Therefore, Part 2 procedures control the submission of hearing documents.

The Commission recently issued for comment a proposed rule that would modify 10 CFR Part 2, Subpart J, for the high-level waste proceeding (68 FR 66372; Nov. 26, 2003). If approved, will any of the proposed changes significantly impact the Subpart J changes appearing in the Final Rules of practice for domestic licensing proceedings and issuance of orders on Changes to Adjudicatory Processes?

No. The Part 2 Rule primarily makes conforming changes to Subpart J to reflect the new generally applicable procedures in Subpart C and provide consistent organization and terminology throughout Part 2. The proposed rule relating to Subpart J would establish the basic requirements and standards for the submission of adjudicatory materials to the electronic hearing docket by parties to the high-level waste repository licensing proceeding. The proposed amendments would also address the issue of reducing the unnecessary loading of duplicate documents on individual participant Licensing Support Network (LSN) document collection servers; the continuing obligation of LSN participants to update their documentary material after the initial certification; the Secretary of the Commission's determination that the DOE license application is electronically accessible; and the provisions on material that may be excluded from the LSN. Thus, the Proposed Rule on Subpart J would not have a significant impact on the revisions to Subpart J in this Final Rule on Changes to the Adjudicatory Process because the Subpart J rulemaking addresses different aspects of NRC adjudications.